Sakudi Bai vs Ramlal and Others

Arun Bhansali, J.—This writ petition is directed against the order dated 24.5.2014 passed by the trial court, whereby the two applications dated 11.3.2014 and 5.4.2014 under Order VII, Rule 14 CPC filed by the petitioner-plaintiff have been rejected.

A suit for cancellation of sale deed, power of attorney and permanent injunction was filed by the petitioner-plaintiff against the defendants. It was claimed that defendant No. 1 Ramlal got executed a power of attorney in his favour from the plaintiff by misrepresentation and fraud; as soon as the plaintiff came to know about the execution of the power of attorney, the same was cancelled and public notice in this regard was published in the news-paper; whereafter, the plaintiff sold her share by way of registered sale deed to one Onkar Lal, however, defendant No. 1 executed a registered sale deed dated 26.2.2010 as power of attorney holder of the plaintiff in favour of defendants No. 2 and 3 Smt. Rami Bai and Smt. Bhagwati by colluding with them.

Written statements were filed by the defendants and averments made in the plaint were denied. Based on the pleadings of the parties, the trial court framed issues, whereafter evidence was led by the plaintiff and the defendants.

The present application dated 11.3.2014 was filed by the plaintiff under Order VII, Rule 14 CPC seeking to produce seven documents, which included F.I.R. lodged by the plaintiff on 16.3.2010, challan filed by the police, F.I.R. lodged by Ramlal, FR given by the police, copy of the revenue map, 11 Jamabandis and a Bank''s report.

It was claimed that the documents pertained to suit, genuine, evidence would help the Court in reaching to a correct decision and it has become necessary to produce the said document as the defendant has given false statement.

The application was opposed by the defendants by filing reply inter-alia questioning the intentions of the plaintiff to file the application after the defendants'' evidence was over.

Whereafter, another application under Order VII, Rule 14 CPC was filed on 5.4.2014 seeking permission to place on record a agreement dated 12.3.2010 said to have been executed between defendant No. 1 Ramlal on the one hand and defendants No. 2 and 3 Smt. Rani Bai and Smt. Bhagwati on the other hand allegedly agreeing to cancel the sale deed dated 26.2.2010. It was claimed that the document was handed over to the plaintiff 7-8 days back from the date of filing application and in the interest of justice, the document be taken on record.

The application was opposed by the defendants alleging that the document was concocted and fraudulent and the defendant No. 1 has colluded with the plaintiff and has created the document. The taking on record of the document would lead to a fresh trial in the suit which is not permissible and prayed for dismissal of the application.

Learned trial court, after hearing the parties, came to the conclusion that in the application dated 11.3.2014, no reason has been indicated for producing the documents with delay and it is not claimed that the plaintiff was not aware of the documents at the relevant time. The revenue documents, if the same were relevant should have been filed at the relevant stage and no reason has been indicated for delayed production.

Regarding the second application dated 5.4.2014, the trial court was of the opinion that written statement was filed by Ramlal on 19.4.2010 and if the document dated 12.3.2010 was in existence, he would have referred to the same in his written statement and therefore, the agreement does not appear to be reliable and consequently, dismissed both the applications.

It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the applications for the reasons indicated by it. Several submissions were made to show the relevance of the documents. The illiteracy of the petitioner and the fact that she had nothing to gain in not producing the documents at the relevant time were also emphasized. It was submitted that the at-least few documents i.e. the Final Reports in two F.I.Rs. lodged by the plaintiff and Ramlal, the report of the Bank regarding the draft and the agreement between defendant No. 1 and defendants No. 2 and 3 may be permitted to be taken on record as the same would be required for a just decision of the suit.

It was submitted that on account of so-called delay, the defendants can be compensated by way of adequate cost. It was prayed that the petition may be allowed and the documents may be taken on record.

The submissions made on behalf of the petitioner were vehemently opposed by counsel for the respondents. It was inter-alia submitted that the entire intention of the petitioner is to somehow delay the decision of the suit. Sufficient opportunity was granted by the trial court to the petitioner to lead evidence, which was led by her, thereafter the defendants led their evidence, after that the documents which pertained to the year 2010 are sought to be produced, not a word giving out any explanation has been indicated for the delay in producing the documents, the Bank''s Report is sought to be misconstrued and misrepresented, the so-called agreement between Ramlal and defendants No. 2 and 3 is a fraudulent document and the same has been concocted with a view to create complications in the suit, which is ripe for final hearing. It was submitted that there is no substance in the writ petition and the same be dismissed.

I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record.

Provision of Order VII, Rule 14 CPC reads as under:-

"14. Production of document on which plaintiff sues or relies.-(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff''s witnesses, or, handed over to a witness merely to refresh his memory."

A bare look at the provision reveals that the documents on which a suit is filed and/or are relied upon, the same have to be entered in the list of documents and are required to be produced in the Court with the plaint; the documents, which are not in possession and power of the plaintiff, the location has to be pointed out in the list of documents and where a document is neither produced alongwith plaint nor entered in the list of documents, the same cannot be received in evidence on behalf of the plaintiff at the time of hearing of the suit without the leave of the Court, however, the same does not apply for cross-examination of the witnesses.

In the present case, admittedly, most of the documents sought to be produced by the plaintiff by way of application dated 11.3.2014 were in existence on the date of filing of the suit or in any case came in existence immediately thereafter in the year 2010 itself, it is not the case of the plaintiff that she was not aware of the said documents and/or was not in possession of the said documents at the relevant time at-least till she closed her evidence on 3.9.2012. Not a word as to what prevented the petitioner from producing the said documents at the relevant time and stage has been averred in the application. The plea regarding plaintiff''s illiteracy and that she had nothing to gain by not producing the same at the relevant time are mere spacious pleas, which cannot form the basis for considering the applications filed by the petitioner.

The power of the Court to grant leave to produce the documents under Order VII, Rule 14(3) CPC is not unfettered and it is required of the plaintiff to make out a case in the application for grant of leave in his favour, which would include a proper explanation for his failure to produce the documents at the relevant time i.e. at the time of filing the plaint and/or any time prior to filing of the application.

The mere fact that the provision does not prescribe any pre-condition for grant of leave does not imply that the plaintiff can be permitted to file the document at leisure leading to thereafter invoking provisions of Order XVIII, Rule 17 CPC for recalling and examining the witness for proving the said documents.

The Hon''ble Supreme Court in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, , while considering the provisions of Order VII, Rule 14 and Order XVIII, Rule 17 CPC observed and held as under:-

"14. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons know to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to file the lacunae in its pleadings and evidence led by him. As rightly observed by the trial court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage" occurring in Order 18 Rule 17 casually set aside the order of the trial court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW 1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 CPC, the plaintiff cannot be permitted.

After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provision in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still the plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC."

In view of the above the order passed by the trial court rejecting the application dated 11.3.2014 cannot be faulted.

So far as the application dated 5.4.2014 seeking to produce the agreement allegedly executed between defendant No. 1 Ramlal and defendants No. 2 and 3 Rami Bai and Bhagwati is concerned, admittedly, the document is dated 12.3.2010 and the written statement as filed by the defendant No. 1 Ramlal on 19.4.2010 wherein there is absolutely no reference to the said agreement and the said defendant has vehemently contested the averments made in the plaint.

The very fact that by the said agreement allegedly the consideration regarding the land in question had been paid back to the defendants No. 2 and 3 is claimed and despite such a claim made therein Ramlal continued to contest the suit and lodged F.I.R. against the plaintiff and the said document was not disclosed for all these years and whereafter the document was handed over to the plaintiff makes whole sequence of events as unreliable.

Though, it is true that normally while considering the application under Order VII, Rule 14 CPC, the relevance of documents is not of much significance, however, in view of the fact that the application was filed at such a belated stage and the sequence of events have been so glaring, it cannot be said that for the just decision of the application, the trial court was not justified in looking at the relevance/veracity of the document. Therefore, the rejection of the application dated 5.4.2014 also cannot be said to be faulted on any of the grounds urged by counsel for the petitioner.

In view of the above discussion, no case for interference in the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India is made out and consequently, the writ petition is dismissed.